Citation Nr: 1012696
Decision Date: 04/05/10 Archive Date: 04/14/10
DOCKET NO. 08-19 518A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an initial disability rating in excess of
10 percent for the service-connected degenerative disc
disease of the lumbar spine (DDD).
2. Entitlement to an initial disability rating in excess of
10 percent for the service-connected osteoarthritis of the
right knee, postoperative arthroscopic repair.
3. Entitlement to an initial disability rating in excess of
10 percent for the service-connected residuals of right
wrist triangular fibrocartilage complex tear with ulnar
impaction and abutment, postoperative arthroscopic repair
(right wrist disability).
4. Entitlement to an initial compensable disability rating
for the service-connected residuals of fracture of the right
fourth finger.
5. Entitlement to an initial compensable disability rating
for the service-connected fracture of the right great toe.
6. Entitlement to an initial compensable disability rating
for the service-connected paroxysmal supraventricular
tachycardia, postoperative cardiac ablation, claimed as PSVT
with complaints of palpitations).
7. Entitlement to a compensable disability rating for the
service-connected hemorrhoids.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L.B. Cryan, Counsel
INTRODUCTION
The Veteran served on active duty from November 1980 to
November 2006.
This case is before the Board of Veterans' Appeals (Board)
on appeal from a May 2007 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Columbia,
South Carolina. In that decision, the RO granted service
connection for, inter alia, residuals of triangular
fibrocartilage complex tear with ulnar impaction and
abutment, postoperative arthroscopic repair with an initial
10 percent rating assigned; osteoarthritis of the right knee
postoperative arthroscopic repair with a 10 percent rating
assigned; residuals of a right fourth finger fracture, rated
as noncompensable; DDD of the lumbar spine, rated as
noncompensable; residuals of a right great toe fracture;
paroxysmal supraventricular tachycardia, postoperative
cardiac ablation, rated as noncompensable; and hemorrhoids,
rated as noncompensable. The effective date for the grants
of service connection was established as December 1, 2006,
the day after separation from service.
In the Veteran's Notice of Disagreement (NOD) with that
decision, received at the RO in November 2007, he
specifically disagreed with the initial ratings assigned
following the grants of service connection for these
disabilities.
During the pendency of the appeal, the RO increased the
initial noncompensable rating for the service-connected DDD
of the lumbar spine to 10 percent effective from December 1,
2006, by way of an April 2008 rating decision. As the award
is not a complete grant of benefits, the issue remains in
appellate status. See AB v. Brown, 6 Vet. App. 35 (1993).
In May 2009, the Veteran testified at a personal hearing
before the undersigned Veterans Law Judge sitting at the RO.
A transcript of his testimony is associated with the claims
file.
The issues of entitlement to an increased disability rating
for the service-connected osteoarthritis of the left hip,
currently rated as 10 percent disabling, and entitlement to
service connection for obstructive sleep apnea have been
raised by the record, but have not been adjudicated by
the Agency of Original Jurisdiction (AOJ). See statement of
the Veteran received in July 2008 and the Board hearing
transcript at page 27. Therefore, the Board does not have
jurisdiction over them, and they are referred to the AOJ for
appropriate action.
The issue of entitlement to an initial rating in excess of
10 percent for the service-connected right knee
osteoarthritis is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran's service-connected degenerative disc
disease of the lumbar spine (DDD) is manifested by flexion
of the thoracolumbar spine limited to, at most, 60 degrees;
however there is x-ray evidence of fairly prominent lordosis
of the lumbosacral junction, facet joint hypertrophy in the
lower three levels of the lumbar spine, and reports of daily
back pain with frequent flare-ups of pain, all of which
establishes an overall disability picture that more nearly
approximates that of muscle spasm or guarding severe enough
to result in abnormal gait or abnormal spinal contour such
as scoliosis, reversed lordosis or abnormal kyphosis.
2. Forward flexion of the thoracolumbar spine has never
been limited to 30 degrees or less, ankylosis of the spine
has never been demonstrated, and incapacitating episodes of
intervertebral disc syndrome having a total duration of at
least 4 weeks but less than 6 weeks during the past twelve
months have never been demonstrated.
3. Ankylosis of the right wrist has never been demonstrated
and neither impairment of pronation or supination of the
right arm nor nonunion or nonunion of the radius or ulna has
been demonstrated.
4. The service-connected right 4th finger fracture residuals
include some pain during cold weather and some limitation of
motion; however, ankylosis and arthritis of the 4th finger
of the right hand are not demonstrated.
5. Neither objective evidence of arthritis of the right
great toe nor ankylosis of the right great toe has been
demonstrated; however, the service-connected right great toe
residuals include pain, limitation of motion, and valgus
deformity of the interphalangeal joint, all of which paint
an overall disability picture that more nearly approximates
that of moderate disability of the right foot.
6. The Veteran's paroxysmal supraventricular tachycardia,
postoperative cardiac ablation is not manifested by
permanent atrial fibrillation or one to four (or more)
episodes per year of paroxysmal atrial fibrillation or other
supraventricular tachycardia documented by ECG or holter
monitor.
7. The Veteran's service-connected hemorrhoids have been
productive of recurrences every couple of months manifested
by persistent bleeding, itching and discomfort; however, the
hemorrhoids are not large, thrombotic, or irreducible and
the Veteran has never had secondary anemia or fissures
associated with the hemorrhoids, all of which more nearly
approximates that of an overall disability picture that is
no more than moderate in degree.
CONCLUSIONS OF LAW
1. The criteria for the assignment of an initial 20 percent
rating, but no higher, for the service-connected DDD
lumbosacral spine have been met since the effective date of
service connection. 38 U.S.C.A. §§ 1155, 5103A (West 2002
& Supp. 2009); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a,
Diagnostic Codes 5237-5243 (in effect since September 26,
2003).
2. The criteria for the assignment of an initial rating in
excess of 10 percent for the service-connected residuals of
right wrist triangular fibrocartilage complex tear with
ulnar impaction and abutment, postoperative arthroscopic
repair (right wrist disability) are not met. 38 U.S.C.A. §
1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7,
4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, 4.124a,
Diagnostic Codes 5215 (2009).
3. The criteria for the assignment of an initial
compensable disability rating for the service-connected
right 4th finger fracture residuals are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1,
4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230
(2009).
4. Resolving all doubt in the Veteran's favor, the criteria
for the assignment of an initial 10 percent rating, but no
higher, have been met for the service-connected residuals of
a great right toe fracture since the effective date of
service connection. 38 U.S.C.A. §§ 1155, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59,
4.71a, Diagnostic Code 5284 (2009).
5. The criteria for a compensable rating for the service-
connected paroxysmal supraventricular tachycardia,
postoperative cardiac ablation are not met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.104,
Diagnostic Code 7010 (2009).
6. The criteria for the assignment of a compensable rating
for the service-connected hemorrhoids have not been met at
any time during the appeal period. 38 U.S.C.A. §§ 1155,
5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.321,
4.1, 4.2, 4.7, 4.10 4.114, Diagnostic Code 7336 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Notice and Assistance
Upon receipt of a complete or substantially complete
application, VA must notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103(a).
The notice requirements apply to all five elements of a
service connection claim: 1) veteran status; 2) existence of
a disability; 3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5)
effective date of the disability. Dingess v. Nicholson, 19
Vet. App. 473 (2006).
The notice must be provided to a claimant before the initial
unfavorable adjudication by the RO. Pelegrini v. Principi,
18 Vet. App.112 (2004).
The notice requirements may be satisfied if any errors in
the timing or content of such notice are not prejudicial to
the claimant. Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006).
The RO provided the appellant pre-adjudication notice by
letter dated in February 2007.
The notification substantially complied with the
requirements of Quartuccio v. Principi, 16 Vet. App. 183
(2002), identifying the evidence necessary to substantiate a
claim and the relative duties of VA and the claimant to
obtain evidence.
With regard to the underlying service connection claims, the
notification also advised the Veteran of the laws regarding
degrees of disability or effective dates for any grant of
service connection.
With regard to the increased rating claims, here, the
Veteran is challenging the initial rating assigned following
the grants of service connection. In cases where service
connection has been granted and an initial disability rating
and effective date have been assigned, the typical service-
connection claim has been more than substantiated, it has
been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled. Id. At 490-91. Thus,
because the notice that was provided before service
connection was granted was legally sufficient, VA's duty to
notify in this case has been satisfied, and no additional
notice is required, particularly given that the initial
notice addressed the application of effective dates and
initial ratings for all grants of service connection. See
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Even so, the RO sent a subsequent letter to the Veteran in
November 2007, just after he submitted his Notice of
Disagreement with the initial ratings assigned for seven of
the service-connected disabilities. The November 2007
letter specifically provided notice of how to substantiate
claims for increased ratings and once again provided notice
of how VA assigns effective dates and initial ratings for
all grants of service connection. The letter also gave
examples of what types of evidence could be submitted to
substantiate a claim for a higher rating.
Moreover, the notices provided to the Veteran over the
course of the appeal provided all information necessary for
a reasonable person to understand what evidence and/or
information was necessary to substantiate his claims. The
Veteran has received all essential notice, has had a
meaningful opportunity to participate in the development of
his claims, and is not prejudiced by any technical notice
deficiency along the way. See Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004).
In any event, the Veteran has neither alleged nor
demonstrated any prejudice with regard to the content or
timing of the notices. See Shinseki v. Sanders, 129 S.Ct.
1696 (2009) (Reversing prior case law imposing a presumption
of prejudice on any notice deficiency, and clarifying that
the burden of showing that an error is harmful, or
prejudicial, normally falls upon the party attacking the
agency's determination.) See also Mayfield v. Nicholson,
444 F.3d 1328, 1333-34 (Fed. Cir. 2006).
VA has obtained service treatment records, assisted the
Veteran in obtaining evidence, afforded the Veteran physical
examinations, obtained medical opinions as to the etiology
and severity of disabilities, and afforded the Veteran the
opportunity to give testimony before the Board. All known
and available records relevant to the issues on appeal have
been obtained and associated with the Veteran's claims file;
and the veteran has not contended otherwise.
VA has substantially complied with the notice and assistance
requirements and the Veteran is not prejudiced by a decision
on the claim at this time.
II. Increased Ratings
The veteran seeks a higher initial disability rating for the
service-connected DDD of the lumbar spine, currently rated
as 10 percent disabling, effective since December 1, 2006,
the effective date of service connection.
Disability evaluations are determined by the application of
a schedule of ratings which is based on the average
impairment of earning capacity resulting from a disability.
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
When there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
Where the schedule does not provide a zero percent
evaluation for a diagnostic code, a zero percent evaluation
shall be assigned when the requirements for a compensable
evaluation are not met. 38 C.F.R. § 4.31.
The rating schedule also provides that when an unlisted
disability is encountered, it will be permissible to rate
under a closely related disease or injury in which not only
the functions affected, but the anatomical localization and
symptomatology are closely analogous. 38 C.F.R. § 4.20.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to the absence or
deformity of structures or other pathology, or it may be due
to pain, supported by adequate pathology and evidenced by
the visible behavior in undertaking the motion. Weakness is
as important as limitation of motion, and a part that
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. § 4.40.
With respect to joints, in particular, the factors of
disability reside in reductions of normal excursion of
movements in different planes. Inquiry will be directed to
more or less than normal movement, weakened movement, excess
fatigability, incoordination, pain on movement, swelling,
deformity or atrophy of disuse. 38 C.F.R. § 4.45.
The intent of the Rating Schedule is to recognize actually
painful, unstable or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3.
It is appropriate to consider whether separate ratings
should be assigned for separate periods of time based on the
facts found, a practice known as "staged" ratings Hart v.
Mansfield, 21 Vet. App. 505 (2007).
DDD Lumbar Spine
The Veteran seeks a higher initial disability rating for the
service-connected DDD of the lumbar spine, currently rated
as 10 percent disabling, effective since December 1, 2006,
the effective date of service connection.
The Veteran's service-connected DDD is rated as 10 percent
disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code
5243.
Disabilities of the spine, such as lumbosacral strain
(Diagnostic Code 5237) or degenerative arthritis of the
spine (Diagnostic Code 5242), for example, are to be rated
pursuant to the General Rating Formula for Diseases and
Injuries of the Spine. Under the rating formula in effect
since September 2003, intervertebral disc syndrome should be
evaluated either under the General Rating Formula for
Diseases and Injuries of the Spine or under the Formula for
Rating Intervertebral Disc Syndrome Based on Incapacitating
Episodes, whichever method results in the higher evaluation
when all disabilities are combined under § 4.25.
Under the General Rating Formula for Diseases and Injuries
of the Spine, as it applies to the lumbar spine, a 10
percent rating is assigned for forward flexion of the
thoracolumbar spine greater than 60 degrees but not greater
than 85 degrees; or combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees; or, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour; or, vertebral body fracture with loss of 50 percent
or more of height.
A 20 percent rating is assigned for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal
gait or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis.
A 40 percent rating is assigned for forward flexion of the
thoracolumbar spine limited to 30 degrees or less; or,
favorable ankylosis of the entire thoracolumbar spine. A 50
percent rating is assigned for unfavorable ankylosis of the
entire thoracolumbar spine, and a 100 percent rating is
assigned for unfavorable ankylosis of the entire spine.
Note 1 under The General Rating Formula provides for
separate evaluations for any associated objective neurologic
abnormalities.
Note (2): (See also Plate V.) For VA compensation purposes,
normal flexion of the thoracolumbar is zero to 90 degrees,
extension is 0 to 30 degrees, left and right lateral flexion
are zero to 30 degrees, and left and right lateral rotation
are zero to 30 degrees. The combined range of motion refers
to the sum of the range of forward flexion, extension, left
and right lateral flexion, and left and right rotation.
According to the Formula for Rating Intervertebral Disc
Syndrome Based on Incapacitating Episodes, a 10 percent
rating is assigned for intervertebral disc syndrome with
incapacitating episodes having a total duration of at least
one week but less than two weeks during the past 12 months.
A 20 percent rating is assigned for incapacitating episodes
having a total duration of at least two weeks but less than
four weeks during the past 12 months. A 40 percent rating
is assigned for incapacitating episodes having a total
duration of at least four weeks but less than six weeks
during the past 12 months. A 60 percent evaluation is
assigned for incapacitating episodes having a total duration
of at least six weeks during the past 12 months.
Note (1): For purposes of evaluations under 5243, an
incapacitating episode is a period of acute signs and
symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a
physician. "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that
are present constantly, or nearly so.
Note (2): When evaluating on the basis of chronic
manifestations, evaluate orthopedic disabilities using
evaluation criteria for the most appropriate diagnostic code
or codes. Evaluate neurologic disabilities separately using
evaluation criteria for the most appropriate neurologic
diagnostic code or codes.
Traumatic arthritis, under Diagnostic Code 5010 is to be
rated on limitation of motion of the affected parts, as
arthritis degenerative. Diagnostic Code 5003, degenerative
arthritis, requires rating according to the limitation of
motion of the affected joints, if such would result in a
compensable disability rating. 38 C.F.R. § 4.71a,
Diagnostic Code 5003. When the limitation of motion of the
specific joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 percent is
assigned for each such major joint or group of minor joints
affected by limitation of motion, to be combined, not added
under Diagnostic Code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In the
absence of limitation of motion, a 10 percent rating is
assigned for arthritis with x-ray involvement of 2 or more
major joints or 2 or more minor joint groups. A 20 percent
rating is assigned for arthritis with x-ray evidence of
involvement of 2 or more major joints or 2 or more major
joint groups, with occasional incapacitating exacerbations.
The regulations pertaining to arthritis have not been
amended.
In addition to the criteria above, any associated
radiculopathy of the lower extremity can be separately rated
under 38 C.F.R. § 4.124A, Diagnostic Code 8520 for paralysis
of the sciatic nerve. A 10 percent rating is assigned for
mild incomplete paralysis of the sciatic nerve. A 20
percent rating is assigned for moderate incomplete paralysis
of the sciatic nerve. A 40 percent rating is assigned for
moderately severe incomplete paralysis. A 60 percent rating
is assigned for severe incomplete paralysis, with marked
muscular atrophy. An 80 percent rating is assigned for
complete paralysis of the sciatic nerve; the foot dangles
and drops, no active movement possible of muscles below the
knee, flexion of knee weakened or (very rarely) lost. 38
C.F.R. § 4.124a, Diagnostic Code 8520.
The term "incomplete paralysis," with this and other
peripheral nerve injuries, indicates a degree of lost or
impaired function substantially less than the type picture
for complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
When the involvement is wholly sensory, the rating should be
for the mild, or at most, the moderate degree. The ratings
for the peripheral nerves are for unilateral involvement;
when bilateral, combine with application of the bilateral
factor. 38 C.F.R. § 4.124a.
Since the effective date of service connection, the
Veteran's lumbar spine has been examined by VA twice. The
first examination took place in February 2007, and the
Veteran's spine was re-examined in February 2008. On both
occasions, the Veteran described daily pain with
intermittent flare-ups that interfered with daily activities
and affected employment. The Veteran reported one episode
of sciatica that occurred during service, but those symptoms
of pain down the leg and numbness had not recurred.
At the February 2007 examination, flexion was 90 degrees,
extension was to 30 degrees, with 30 degrees of lateral
bending in each direction and 45 degrees of rotation in each
direction without any apparent pain. Significantly, x-ray
studies of the lumbar spine taken in conjunction with the
examination revealed "fairly prominent lordosis of the
lumbosacral junction," with some facet joint hypertrophy
suspected at the last three levels.
At the February 2008 VA examination, the Veteran noted that
he had physician-ordered bedrest twelve months earlier for
about two to three days. The Veteran noted that he had
undergone physical therapy in the past which had helped with
the pain somewhat. Forward flexion was limited to 80
degrees with pain, extension to 30 degrees with pain, right
and left lateral flexion to 20 degrees with pain, and right
and left lateral rotation to 30 degrees with pain. No spasm
was demonstrated during the examination. X-ray studies
confirmed lower lumbar degenerative disc disease with facet
arthropathy from L4 through S1.
Significantly, the Veteran reported at his VA examination in
February 2008, as well as in statements to the RO and at his
personal hearing before the undersigned in May 2009, that
his service-connected back disability had an enormous impact
on his ability to function in his employment. As a law
enforcement instructor, the Veteran reported that his
service-connected back disability has rendered him no longer
able to run, fight, or keep self-defensive tactic moves.
The February 2008 examiner specifically noted that the
Veteran was a law enforcement instructor, and that back pain
interfered with his occupation. For example, the examiner
noted, the Veteran had difficulty demonstrating self defense
tactical moves due to back pain.
Furthermore, although the Veteran was not experiencing
flare-ups of painful muscle spasms on the day of the
February 2007 or the February 2008 VA examinations, there is
evidence in the service treatment records (STRs) showing a
long history and treatment for back pain during periods
where there has been palpable muscle spasm throughout the
Veteran's lengthy period of service. Spasms were noted in
January 2000, for example, when the Veteran presented for
treatment for a flare-up of back pain. A July 1997 STR, for
example, notes that the Veteran presented with moderate
guarding of the lumbar region with spasm pattern at
L4/5through S2, bilaterally. The region was tender on
examination. Moderate spasm of the lumbar paraspinals at
L2-S2 bilaterally was also noted in July 1995.
In sum, the STR's confirm evidence of fairly consistent
lumbar muscle spasm; the x-ray studies confirm evidence of
"prominent lordosis," and the Veteran has provided competent
and credible testimony regarding his level of back pain, and
the fact that his back disability has had an impact on his
ability to perform certain aspects of his job appropriately.
The totality of this evidence provides an overall disability
picture that more nearly approximates the criteria for the
assignment of a 20 percent rating for the service-connected
DDD of the lumbar spine.
In evaluating the Veteran's claim, the application of this
higher disability evaluation is, in part, based on
functional loss due to weakness, fatigability,
incoordination, or pain on movement of a joint under 38
C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet.
App. 202 (1995). Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several
grades of disability. 38 C.F.R. § 4.1. Moreover, neither
the February 2007 VA examiner nor the February 2008 VA
examiner indicated that there was any additional functional
limitation due to pain, weakness, fatigue, etc. than what
was already noted on examination.
Consideration has been given to "staged ratings" since the
effective date of service; however, there are no other
identifiable periods of time since the effective date of
service connection during which the Veteran's lumbar spine
disability warrants a different rating.
The evidence more closely approximates the criteria for a 20
percent rating for degenerative disc disease of the lumbar
since the effective date of service connection. 38 C.F.R. §
4.7. A separate rating for radiculopathy of the lower
extremity is not warranted, as this condition has not been
shown in either the outpatient treatment records or on two
VA examinations since the effective date of service
connection. Therefore, the preponderance of the evidence is
against finding that he has a chronic neurologic disability
associated with his service-connected spine condition.
Additionally, a rating in excess of 20 percent for the
service-connected DDD is not for application in this case
because forward flexion of the thoracolumbar spine has never
been limited to 30 degrees or less, ankylosis has never been
demonstrated, and the Veteran does not have incapacitating
episodes of intervertebral disc syndrome having a total
duration of at least 6 weeks during a twelve month period.
In sum, the criteria are more nearly approximated for the
assignment of a 20 percent rating, but no higher, for the
service-connected DDD of the lumbar spine, since the
effective date of service connection.
Right Wrist
The Veteran seeks an initial rating in excess of 10 percent
for the service-connected residuals of right wrist
triangular fibrocartilage complex tear with ulnar impaction
and abutment, postoperative arthroscopic repair (right wrist
disability).
The Veteran's right wrist disability is rated as 10 percent
disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code
5215.
Limitation of wrist motion is rated under Diagnostic Code
5215, which provides for a 10 percent rating for limitation
of motion of the wrist where dorsiflexion is less than 15
degrees or where palmar flexion is limited in line with
forearm. A 10 percent rating is the highest rating for
limitation of the wrist, unless ankylosis is shown. 38
C.F.R. § 4.71a, Diagnostic Code 5215.
As noted above, a 10 percent rating may be assigned for
arthritis, with x-ray evidence of such, when limitation of
motion is noncompensable. 38 C.F.R. § 4.71a, Diagnostic
Code 5003. The medical evidence in this case reflects that
the Veteran tore ligaments in his right wrist during
service, and underwent an ulnar shortening procedure in 2000
whereby a short section of the mid shaft of the ulna was
removed. That procedure greatly improved the wrist pain,
although the Veteran continues to have soreness in the right
wrist with heavy use and cold weather.
The right wrist condition affected the Veteran's employment
in that he is unable to "fight" when he is teaching law
enforcement. On examination of the right wrist in February
2007, motion was within normal limits, with dorsiflexion
(extension) to 70 degrees and palmar flexion to 80 degrees.
Radial deviation was to 20 degrees and ulnar deviation was
to 45 degrees. The only pain was noted at the extreme of
ulnar deviation.
On examination of the right wrist in December 2007, the
Veteran reported pain one time per week for 30 minutes. He
wore a brace as needed for lifting. Motor strength was 5/5
and there was normal sensation throughout the upper
extremity. Palmar flexion of the right wrist was from 0 to
60 degrees. Dorsiflexion was from 0 to 70 degrees. Ulnar
deviation was from 0 to 45 degrees with discomfort. Radial
deviation was from 0 to 15 degrees. There was no diminution
with repetitive testing. The elbow motion was from 0 to 140
degrees of flexion with pronation and supination from 0 to
90 degrees, without pain.
As noted above, the 10 percent rating currently assigned is
the highest possible rating for limitation of motion of the
wrist without ankylosis, pursuant to Diagnostic Code 5215.
Because there is no ankylosis of the right wrist, a rating
in excess of 10 percent is not assignable under 38 C.F.R.
§ 4.71a, Diagnostic Code 5214 for ankylosis of the right.
Other potentially applicable diagnostic codes have been
considered. In particular, 38 C.F.R. § 4.71a, Diagnostic
Codes 5210-5213 govern ratings for impairment of the ulna
and radius, including impairment of pronation and
supination, and nonunion and malunion of the ulna and
radius. To warrant a rating under any one of these codes,
there must be nonunion of the radius and ulna with false
flail joint (Diagnostic Code 5210), malunion of the ulna
with bad alignment or nonunion of the ulna in the upper or
lower half (Diagnostic Code 5211), malunion of the radius
with bad alignment or nonunion of the radius in the upper or
lower half (Diagnostic Code 5212) or limitation of pronation
or supination (Diagnostic Code 5213). Since none of these
conditions exist, Diagnostic Codes 5210 through 5213 are not
applicable.
In essence, the Veteran's has minimal limitation of motion
of the right wrist, with some soreness, pain, and numbness
on occasion. This functional loss due to pain is
compensated for with the assignment of the 10 percent rating
currently assigned. 38 C.F.R. §§ 4.40, 4.45, and 4.59. See
DeLuca v. Brown, 8 Vet. App. 202 (1995). There is no basis
on which to assign a higher rating.
The criteria for the assignment of this 10 percent rating,
but no higher, have been met during the entire appeal
period, as there are no distinct time periods where the
Veteran's right wrist symptoms warrant different ratings.
The Veteran's assertions that a higher rating are warranted
have been considered but the totality of the evidence, as
discussed above, shows that the criteria for a higher
evaluation are not met.
The preponderance of the evidence is against the claim for
an initial rating in excess of 10 percent for the service-
connected right wrist disability, there is no doubt to be
resolved. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3.
Right 4th Finger Fracture
The Veteran's service-connected residuals of a right 4th
finger fracture are rated pursuant to 38 C.F.R. § 4.71a,
Diagnostic Code 5230. Under that code, any limitation of
motion of the ring or little finger is considered
noncompensably disabling. 38 C.F.R. § 4.71a, Diagnostic
Code 5230.
Similarly, ankylosis of the ring or little finger does not
warrant a compensable evaluation. 38 C.F.R. § 4.71a,
Diagnostic Code 5227. "Ankylosis" is immobility and
consolidation of a joint due to disease, injury, or surgical
procedure. See Dorland's Illustrated Medical Dictionary 86
(28th ed., 1994).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis,
due to trauma, substantiated by x-ray findings, will be
rated as degenerative arthritis. Under 38 C.F.R. § 4.71a,
Diagnostic Code 5003, degenerative arthritis established by
x-ray findings will be rated on the basis of limitation of
motion under the appropriate Codes for the specific joint or
joints involved. As noted, however, any limitation of
motion is considered non-compensably disabling. A 10
percent rating is warranted when limitation of motion under
the appropriate diagnostic code in non-compensable or when
there is x-ray involvement of 2 of more major joints or 2 or
more minor joint groups. A 20 percent rating is permitted
when there is x-ray evidence of degenerative arthritis
involving 2 or more major joints or 2 or more minor joint
groups with occasional incapacitating exacerbations. 38
C.F.R. § 4.71a, Diagnostic Code 5010.
According to the February 2007 VA examination report, the
Veteran fractured his right fourth finger at the distal
interphalangeal joint in 2005. It was treated with
splinting with good resolution and minimal subsequent
symptoms. The Veteran reported pain during cold weather,
but not otherwise. The joint was stable. The Veteran could
not quite fully extend the joint with the limit being 5
degrees of extension. The Veteran could fully flex the
joint to about 70 degrees and could touch the palmar crease
with the fourth finger.
As there is no evidence of arthritis, the assignment of a 10
percent rating for the service-connected residuals of a
right 4th finger fracture is not assignable.
Furthermore, a compensable rating is not permitted under 38
C.F.R. § 4.71a, Diagnostic Code 5227 or Diagnostic Code
5230, relating to limitation or ankylosis of the ring
finger.
Additionally, a separate compensable rating is not
assignable based on any neurologic dysfunction of the finger
or hand because no such neurologic findings were shown on
examination in February 2007. 38 C.F.R. §§ 4.124a,
Diagnostic Codes 8515, 8516.
Similarly, while the Veteran described some limited use of
the right hand, he did not contend, nor does the medical
evidence show that he has lost the use of the right hand or
lost all effective functioning of the hand. Thus, the
disability does not approximate disabilities based on
amputation of the finger or hand, or loss of use of the
hand. See, e.g., 38 C.F.R. §§ 4.63, 4.71a, Diagnostic Codes
5125, 5155.
Based on the foregoing, there is no basis on which to assign
a compensable rating to the service-connected residuals of
the right 4th ring finger fracture, even with consideration
of functional limitation due to pain, weakness, fatigue,
etc. The Veteran's mild limitations are duly noted;
however, the severity of the residuals of this injury do not
rise to a level that would warrant a compensable rating
based on the rating criteria applicable to disabilities of
individual digits of the hand. There is no decrease in grip
strength, and there is essentially no functional limitation
noted on examination or described by the Veteran. The
presence of a mild deformity of one digit, minimal
limitation, but without functional loss does not provide a
basis on which to assign a compensable rating. The
preponderance of the evidence is against the claim; there is
no doubt to be resolved; and an initial compensable rating
for the service-connected residuals of a right 4th ring
finger fracture is not warranted. 38 U.S.C.A. § 5107(b), 38
C.F.R. § 4.3.
Right Great Toe Fracture
According to the February 2007 VA examination report, the
Veteran fractured the right great toe in 1995 involving both
joints of the toe. The toe was set externally and splinted
and healed well. The Veteran continued to report pain in
cold weather and occasionally with impact. The toe cannot
extend beyond 0 degrees and the Veteran can flex the toe
only to a total of about 15 degrees. X-ray of the right
foot revealed a mild valgus angulation of the proximal
phalanx of the great toe and its related interphalangeal
joint. There was no significant arthropathy.
The Veteran's service-connected right great toe fracture
residuals are rated pursuant to 38 C.F.R. § 4.71a,
Diagnostic Code 5284. Diagnostic Code 5284 provides
criteria for rating other foot injuries. A moderate foot
injury warrants a 10 percent disability evaluation. A
moderately severe foot injury warrants a 20 percent
disability evaluation and a severe foot injury is assigned a
30 percent disability evaluation. A note to Diagnostic Code
5284 provides that a 40 percent disability evaluation will
be assigned for actual loss of use of the foot. 38 C.F.R. §
4.71a, Diagnostic Code 5284.
Disabilities of the foot are rated under Diagnostic Codes
5276 to 5284. 38 C.F.R. § 4.71a. All of these codes have
been considered to determine which code provides the
Veteran's service-connected right great toe disability with
the most appropriate disability rating.
Under Diagnostic Code 5276 for flatfoot, a 10 percent
rating, regardless of whether the condition is unilateral or
bilateral, indicates it is moderate with the weight-bearing
line over or medial to the great toe, inward bowing of the
tendon Achilles, and pain on manipulation and use of the
feet. Higher ratings are assigned for more severe pes
planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276.
Diagnostic Code 5278 for claw foot (pes cavus) provides for
a maximum 50 percent disability rating when there is
bilateral marked contraction of plantar fascia with a
dropped forefoot, all toes hammer toes, very painful
callosities, marked varus deformity. A maximum 30 percent
disability rating is assignable when the preceding symptoms
are unilateral. A 30 percent disability rating may also be
assigned when there is a tendency toward bilateral
dorsiflexion of all toes, limitation of dorsiflexion at the
ankle to right angle, shortened plantar fascia, and marked
tenderness under metatarsal heads. A 20 percent disability
rating is assignable when the preceding symptoms are
unilateral. A 10 percent disability rating is assignable
when the great toe is dorsiflexed, there is some limitation
of dorsiflexion at ankle, definite tenderness under
metatarsal heads, either bilaterally or unilaterally.
Further, Diagnostic Code 5279 for Metatarsalgia, anterior
(Morton's Disease) provides for a maximum evaluation of 10
percent, whether the disability is unilateral or bilateral.
Diagnostic Code 5280 provides for a 10 percent disability
rating for unilateral hallux valgus with resection of the
metatarsal head, or severe enough to be equivalent of
amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic
Codes 5279, 5280.
Diagnostic Codes 5277, 5281, 5282 and 5283 apply to
disabilities involving weak foot (Diagnostic Code 5277),
hallux rigidus (Diagnostic Code 5281), hammer toe
(Diagnostic Code 5282) or malunion or nonunion of tarsal or
metatarsal bones (Diagnostic Code 5283).
The evidence in this case indicates that the Veteran's right
great toe fracture residuals consist of pain in the right
big toe, with x-ray evidence of mild valgus angulation of
the proximal phalanx of the great toe and its related
interphalangeal joint. The examiner also noted that there
was definite limitation of motion of the great toe. As
there is definite deformity of the great toe, as noted on x-
rays, this disability is most closely described as a hallux
valgus deformity. Under Diagnostic Code 5280, however, to
warrant a compensable 10 percent disability rating, there
must be either resection of the metatarsal head, or the
hallux valgus must be severe enough to be equivalent of
amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic
Codes 5280. This has never been demonstrated.
Similarly, the Veteran does not exhibit pes planus, weak
foot, claw foot, metatarsalgia, hallux rigidus, hammer toe
or malunion of the tarsal or metatarsal bones, such that a
compensable rating under any of those codes would be
appropriate in this case.
As noted above, the Veteran is currently assigned a
noncompensable rating under Diagnostic Code 5284 for "other
foot injuries. To warrant the next higher, 10 percent
rating, there must be a moderate foot disability. Given the
severity of the initial toe injury, the Veteran's credible
testimony regarding the residuals therefrom, and in
resolving all doubt in the Veteran's favor, a moderate foot
disability is shown in this case. The Veteran suffered a
fairly significant injury to the great toe on the right
foot. This injury led to a permanent deformity in the toe,
which is causing pain and which may have additional impact
on the Veteran's gait and knee. The x-ray confirms that the
phalanx of the right great toe is angulated outward, in a
valgus formation, which, by its very nature, causes pain and
discomfort, particularly with shoe wearing, as reported by
the Veteran at his personal hearing in May 2009. Given the
Veteran's objective findings on x-ray, along with his
credible reports of pain, all doubt is resolved in the
Veteran's favor and a moderate foot disability is concluded.
The criteria for the assignment of this 10 percent rating,
but no higher, have been met during the entire appeal
period, as there are no distinct time periods where the
Veteran's symptoms warrant different ratings.
Paroxysmal Supraventricular Tachycardia
The record reflects that the Veteran had recurrent
supraventricular tachycardia in the late 1990's which led to
ablation in 1998. Although the ablation was apparently
successful, the Veteran continues to have episodes of
increased heart rate, heart palpitations, and tingling
episodes that cause enormous amounts of anxiety and stress.
At his VA examinations in February 2007 and December 2007,
the Veteran described one post-ablation episode of
palpations that lasted for about 8 minutes and was so severe
that he had to sit down on the golf course, rub his carotid
artery, and bear down to relieve the symptoms. Although he
had not had an episode that severe recently, he explained
that he was never sure when one may develop, and this fear
of the unknown caused a great amount of daily stress.
Moreover, the Veteran continued to report ongoing, less
severe episodes of palpitations with tingling that last only
seconds, but which required him to sit until the symptoms
subsided. EKG revealed sinus bradycardia and right bundle
branch block.
In support of his claim for a compensable rating, the
Veteran testified that his heart condition, although better
now than prior to the ablation in 1998, still scared him
daily. He was never sure when he would experience a minor
tachycardia, and/or if his heart rate would suddenly go up.
He explained how this disability affected his daily life in
that he has developed a lot of anxiety and nervousness over
the issue and still has no idea when the rapid heartbeat
will strike.
The Veteran's service-connected paroxysmal supraventricular
tachycardia, postoperative cardiac ablation is currently
rated as noncompensable pursuant to 38 C.F.R. § 4.104,
Diagnostic Code 7010.
Under 38 C.F.R. § 4.104, Diagnostic Code 7010, a 10 percent
evaluation is warranted for supraventricular arrhythmias,
with permanent atrial fibrillation (lone atrial
fibrillation), or one to four episodes per year of
paroxysmal atrial fibrillation or other supraventricular
tachycardia documented by electrocardiogram (ECG) or Holter
monitor. A 30 percent rating is assigned for paroxysmal
atrial fibrillation or other supraventricular tachycardia
with more than four episodes per year documented by ECG or
Holter monitor.
Although the Veteran's severe tachycardia was corrected with
the 1998 ablation, the Veteran reports that he continues to
have minor episodes of heart palpitations with irregular
and/or increased heart rate. According to the Veteran,
these episodes occur at least one to four times per year and
have a significant impact on his life.
The Veteran can attest to factual matters of which he had
first-hand knowledge, e.g., experiencing pain in service,
reporting to sick call, being placed on limited duty, and
undergoing physical therapy. See Washington v. Nicholson,
19 Vet. App. 362, 368 (2005). However, the rating criteria
require permanent atrial fibrillation or at least one to
four episodes per year of paroxysmal atrial fibrillation or
other supraventricular tachycardia documented by ECG or
Holter monitor for a compensable rating to be assigned.
The Veteran maintains that he suffers from one to four
episodes of the above-described episodes per year, and this
is in addition to the stress and anxiety of never knowing if
or when he may suffer from a more intense episode. However,
the evidence does not show that he has permanent atrial
fibrillation or episodes one to four (or more) times per
year documented by ECG or Holter monitor. Accordingly, the
competent evidence does not show that a compensable rating
is warranted under Diagnostic Code 7010. Staged ratings are
not warranted as there are no distinct time periods where
the Veteran's supraventricular tachycardia symptoms are
shown to warrant different ratings.
There is no other Diagnostic Code pertaining to disabilities
of the heart that would provide for a disability rating in
excess of 10 percent for the Veteran's service-connected
heart disability as the evidence does not show any type of
heart disease or myocardial infarction (Diagnostic Codes
7000-7008, sustained ventricular arrhythmias (7011),
atrioventricular block (7015), heart valve replacement
(7016), coronary bypass surgery (7017), implantable cardiac
pacemaker (7018), cardiac transplant (7019), or
cardiomyopathy (7020).
Hemorrhoids
At the VA examination in February 2007, the Veteran reported
that his hemorrhoid symptoms flared about every two months.
The symptoms consisted of blood in the toilet, on the tissue
paper, itching, and pain. On examination, a small
hemorrhoid was observed. It was neither thrombosed nor
infected.
At his personal hearing in May 2009, the Veteran testified
that his hemorrhoids involved a lot of bleeding and
discomfort, although they were not large enough to undergo
surgery for removal.
The Veteran's service-connected hemorrhoids are currently
rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic
Code 7336. Under this diagnostic code, hemorrhoids that are
mild or moderate warrant a noncompensable disability rating.
A 10 percent disability rating is warranted when there is
evidence of hemorrhoids that are large or thrombotic,
irreducible, with excessive redundant tissue, evidencing
frequent recurrences. For the maximum 20 percent disability
rating to be assigned, the evidence must show persistent
bleeding and secondary anemia, or fissures. 38 C.F.R. §
4.114, Diagnostic Code 7336.
This is the only applicable diagnostic code as the Veteran's
hemorrhoids do not produce impairment of sphincter control
of the rectum and anus (Diagnostic Code 7332).
Both the medical evidence and the Veteran's testimony
indicate that the Veteran's hemorrhoids are no more than
moderate in degree, if that. According to the Veteran, his
hemorrhoids flare up every other month or two, and are
productive of a lot of bleeding. The hemorrhoids cause
typical itching and discomfort. However, as noted on
examination, the hemorrhoids are not thrombotic, they are
small, and they are reducible. The Veteran does not require
surgery, and he is able to gain some relief with
hemorrhoidal creams.
There is no doubt that the Veteran's service-connected
hemorrhoids cause discomfort, and the Veteran's testimony in
this regard is certainly credible; however, to warrant a
compensable rating for hemorrhoids, the evidence must show
that the hemorrhoid disability is more than moderate in
degree. This is simply not shown in this case. Although
the Veteran reports significant bleeding associated with the
hemorrhoids, there is no evidence of anemia, and the
examiner did not indicate that the Veteran's bleeding was
the equivalent of a fissure. Moreover, the examiner
specifically indicated that the Veteran's hemorrhoids were
not thrombosed.
Based on the foregoing, there is no basis on which to assign
a compensable rating for the service-connected hemorrhoids,
and there are no distinct time periods where the Veteran's
symptoms warrant a compensable rating during the appeal
period.
The preponderance of the evidence is against the claim for a
compensable rating for the service-connected hemorrhoids;
there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), 38
C.F.R. § 4.3.
III. Extra Schedular Consideration
Finally, the potential application of 38 C.F.R. §
3.321(b)(1) has also been considered. See Thun v. Peake, 22
Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App.
589, 593 (1991). However, there has been no showing that
the service-connected disabilities under consideration here
have caused marked interference with employment, have
necessitated frequent periods of hospitalization beyond
those noted above, or otherwise render impracticable the
application of the regular scheduler standards. The regular
scheduler standards contemplate the symptomatology shown in
this case as was discussed above. In essence, there is no
evidence of an exceptional or unusual disability picture in
this case which renders impracticable the application of the
regular scheduler standards. As such, referral for
consideration for an extraschedular evaluation is not
warranted here. Thun v. Peake, 22 Vet. App. 111 (2008).
ORDER
An initial 20 percent rating, but no higher, for the
service-connected DDD of the lumbar spine is granted,
effective from the effective date of service connection and
subject to the laws and regulations governing the payment of
monetary benefits.
An initial rating in excess of 10 percent for the service-
connected residuals of right wrist triangular fibrocartilage
complex tear with ulnar impaction and abutment,
postoperative arthroscopic repair (right wrist disability)
is denied.
An initial compensable disability rating for the service-
connected right 4th finger fracture residuals is denied.
An initial 10 percent rating, but no higher, is granted for
the service-connected residuals of a great right toe
fracture, effective since the effective date of service
connection and subject to the laws and regulations governing
the payment of monetary benefits.
A compensable rating for the service-connected paroxysmal
supraventricular tachycardia is denied.
A compensable rating for the service-connected hemorrhoids
is denied.
REMAND
The Veteran seeks a rating in excess of 10 percent for the
service-connected osteoarthritis of the right knee. In
recent statements to the RO and in testimony at his personal
hearing in May 2009, the Veteran reported that his right
knee had been giving way and felt unstable. At the VA
examination in December 2007, it was noted that the
Veteran's right knee "locked and buckled."
Given the Veteran's recent complaints, and, particularly
given that the Veteran had a meniscal tear in service, with
partial resection, the Veteran's right knee should be
reexamined to determine whether there is additional
disability aside from limitation of motion. Specifically,
the examiner should determine if there is dislocated
semilunar cartilage in the right knee with frequent episodes
of locking, pain, and effusion into the joint, and/or
whether there is recurrent subluxation and/or lateral
instability of the right knee such that a rating higher than
10 percent is warranted, and/or whether a separate rating
may be assigned in addition to the 10 percent currently
assigned for the service-connected right knee disability.
Since the claims file is being returned it should also be
updated to include recent relevant VA treatment records
dating from December 2007. See Bell v. Derwinski, 2 Vet.
App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claims
file all VA treatment records pertinent to
the claim on appeal dated since December
2007.
2. After completion of #1 above, schedule
the Veteran for a VA orthopedic
examination to determine the current
severity of the service-connected right
knee disability. All indicated tests,
including X-ray (CT and/or MRI scans if
necessary) and range of motion studies,
must be conducted. The claims file must
be made available to and reviewed by the
examiner in conjunction with the
examination. The examiner should provide
an opinion as to the extent that pain
limits the functional ability of the right
knee in terms of additional functional
limitation due to pain. The examiner
should describe the extent the right knee
exhibits weakened movement, excess
fatigability, incoordination, and/or
ankylosis. These determinations should be
expressed in terms of the degree of
additional range of motion loss. The
examiner should also portray the degree of
additional range of motion loss due to
pain on use or during flare-ups. A
complete rationale for any opinion
expressed must be provided. Additionally,
the examiner should determine whether
there is arthritis of the knee, lateral
instability and/or recurrent subluxation
of the knee, and if so, whether the
lateral instability and/or recurrent
subluxation is mild, moderate, or severe.
The examiner should also determine whether
the right knee is manifested by dislocated
semilunar cartilage with frequent episodes
of locking, pain, and effusion into the
joint.
3. Following completion of the
development requested, readjudicate the
Veteran's claim. If any benefit sought on
appeal remains denied, the Veteran and his
representative should be provided with a
supplemental statement of the case (SSOC),
and an appropriate period of time allowed
for response.
The appellant has the right to submit additional evidence
and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs